MAHMOOD A. KHAN, J.---This appeal by the defendant/ judgment debtor (before the learned trial Court) has impugned the order dated 18.02.2020 passed by Banking Court No.II at Karachi in Suit No.259/2008 leading to Execution No. 53/2009, whereby the learned Banking Court was pleased to confirm the sale of mortgaged property in favour of auction purchaser who submitted the highest bid and thereafter having expired, his legal heirs taken as respondents Nos.2(i) to (v).
2. The relevant background of the matter hearing from the record is that the National Bank of Pakistan filed Suit No.259/2008 against the present appellant for recovery of Rs.518,870/- along with cost of fund which was decreed on 14.02.2009 and execution proceedings ensued for recovery of said amount along with cost thereof totaling to Rs. 551.995/-to be recovered by way of auction of subject mortgaged property . The mortgaged property was put to auction by settlement of terms of sale order dated 30.10.2017 and the auction was conducted on 28.02.2018, wherein one Mohammad Iqbal come up with the highest bid of Rs. 17,00,000/- depositing pay order of Rs.
500,000/- whereafter the balance amount was also deposited on 14.03.2018. In the meanwhile on 27.02.2018 the judgment debtor filed an application unde r Order XXI, Rule 69, C.P.C. read with section 151, C.P.C. requiring time in order to acquire consent of decree holder for payment of entire decretal amount in three installments as the concerned official of the decree holder was said to be out of country , to which notice to other side was ordered on the same date. On record is also present authorization of decree holder dated 30.05.2018 to collect the payment order/cheque of the decretal amount deposited by the customer/judgment debtor . There is another application present on record apparently filed by the auction dated 03.05.2018 requiring return of the amounts paid "as the matter almost has been settled with the party" were two orders were present, i) of the same date calling report from the Nazir and, ii) dated 07.01.020 to callin g all the legal heirs. The aforesaid dates are confirmed by the statement dated 10.11.2020 filed by the Decree Holder in the present appeal before this Court which further specify that the Judgment Debtor made payment of Rs. 400,000;- on 15.03.2018 and further Rs. 1,188,000/- being the balance amount on 30.03.2018. It is also disclosed that the death of auction purchaser occurred on 09.10.2018.
3. Learned counsel for the appellant contends that the judgment debtor i.e. the appellant filed the application dated 27.02.2018 before the Executing Court requiring payment of entire decretal amou nt by way of three installments before the auction to which no orders of disposal was passed whereafter eventually the whole amount was also paid on part of the judgment debtor before the present confirmation impugned order . It was also contended that although the auction purchaser by way of statement dated 14.03.2018 deposite d the balance amount, another application was filed by him for return of whole bid amount on 03.05.2018 for release of the said amount back to him on account of settlement by the party . That the decree holder withdrew the amount deposited by the appellant through written authorization dated 30.05.2018. It is as such contended that as the judgment debtor had exercised his right of redemption before confirmation of the bid irrespective to the objection of legal heirs of the bidder that the bidder never required the bid back and affidavit in this regard on part of the widow , as such the impugned order is liable to be set-aside. Whereas learned counsel for the decree holder bank has contended that the amount has been recovered, however the order was passed by the learned Banking Court confirming the bid is liable to be considered as the judgment debtor had failed to avail his right of redemption earlier although he was well aware of the proceedings. Learned counsel for respondent No. 2 also contends that the auction purchaser had a right created in the matter as he was not only the highest bidder the whole of the required amount was got deposited, cheques of which were ordered to be deposited in the account of the Court by the presiding officer. She had placed reliance on an unreported case decided by the Hon'ble Supreme Court in Civil Petition No. 686-K of 2019 titled Muhammad Jawad v. First Women Bank Limited contending that deposit of the balance amount and acceptance of the same on part of the Court is confirmation of bid and as such the legal right of the auction purchaser having created is liable to be entertained as held by the learned Banking Court by 'way of the impugned order .
4. Having heard the learned counsel and gone through the record, it is important to first observe the relevant dates in the matter which bear from the record being that the suit was decreed on 14.02.2009 for a recovery of sum of Rs. 518,870/- along with further cost, of fund and sale of mortgaged property and cost thereon shown in the decree in the sum of Rs. 32,325/-. The decree holder filed the execution for recovery of Rs. 529,810 on 19.05.2009. The decree holder filed the statement under Order XXI, Rule 66, C.P.C. on 27.05.2015 for settling the terms of sale which was ordered upon on 30.10.2017 and the mortgaged property was directed to be put to sale having market value of Rs. 20,00,000/- and fore-sale value of Rs. 15,00,000/-. The judgment debtor filed application under Order XXI, Rule 69, C.P.C. read with section 151, C.P.C. on 27.02.2018. The record also shows that auction in the matter was held on 28.02.2018 at 02:00 p.m. wherein Muhammad Iqbal the predecesso r of defendant No. 2 made the highest bid in the sum of Rs. 17,00,000/- by depositing the pay order of Rs. 500,000/-being 25% of the bid amount as the highest bid along with two other prospective purchaser however they were having lesser bid amount. The record also shows that statement filed on part of the bidder/auction purchaser on 14.03.2018 for the balance amount requiring confirmation, whereas an application dated 03.05.2018 is also present now being disputed by the L.Rs by the auction purchaser / bidder for return of the amount. The learned Banking Court by way of the impugned order dated 18.02.2020 was pleased to confirm the sale considering the auction proceedings having been conducted, death of the bidder , verification of the legal heirs and the no objection on part of the decree holder .
5. As to the case law relied upon by learn ed counsel for the respondent No.2, however we are afraid that the said case law is against the respondents wherein Hon'ble Supreme Court was pleased to decline leave on the appeal preferred by an auction purchaser on the analysis of Hudaybia Textile Mills Ltd. v. Allied Bank of Pakistan , PLD 1987 SC Page 512 and Mst. Anwar Sultana v. BankAl-Falah Ltd., 2014 SCMR Page 1222 along with cases of Muhammad Attique v. Jami Limited , PLD 2010 SC Page 993, Navalkha and Sons v. Ramanya Das, (1969) 3 SCC 537 and Union Bank of India v. Official Liquidator , (2000) 5 SCC 274, wherein irrespective to the bid having not been confirmed it has been held that without passing the order of confirmation the clog on equity/right of redemption is not available as the bid remains an offer before its confirmation by the relevant Court. Coming back to present case, it bears from the record that the impugned order for confirmation of sale was passed without not only the disposal of application under Order XXI, Rule 69, C.P.C. read with section 151, C.P.C. requiring payment of the decretal amount i.e. exercise of right of redemption on part of judgment debtor , the element of payment having been made by the judgment debtor has not been discussed which in the present circumstances as bearing from the record were not found available as the judgment debtor had cleared the liability of the decree holder before the confirmation of the offer and in the circumstances the order of depositing of the amount in the court is bank account cannot be treated as an order of confirmation, further if the same be treated as a confirmation order no justification is left for the impugned order . As such this appeal was allowed by the short order dated 30.04.2021 and these are the reasons thereof.